Vollington v. Southern Paving Const. Co.

• Decision Date: 28 July 1932
• Docket Number: 13458.
• Citation: Vollington v. Southern Paving Const. Co., 166 S.C. 448, 165 S.E. 184 (S.C. 1932)
• Parties: VOLLINGTON v. SOUTHERN PAVING CONST. CO. et al.
• Court: South Carolina Supreme Court

165 S.E. 184

166 S.C. 448

VOLLINGTON v. SOUTHERN PAVING CONST. CO. et al.

No. 13458.

Supreme Court of South Carolina

July 28, 1932

Appeal from Common Pleas Circuit Court of Florence County; M. M Mann, Judge.

Action by Josh Vollington against the Southern Paving Construction Company and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

McNeill & Oliver, of Florence, for appellants.

Baker & Baker and P. H. McEachin, all of Florence, for respondent.

BONHAM J.

Southern Paving Construction Company, hereinafter called the paving company, is a corporation engaged in the construction and paving of highways, under contract, and at the time of the occurrences set forth in the complaint of the plaintiff herein was engaged in such work in Florence county, S. C under contract with the state highway department, which was made a party to the action, but by consent was dismissed from the suit as a party defendant. George F. Robinson and Thurman Davenport were agents and employees of the paving company. The plaintiff was also employed by the paving company as a laborer, and at an unnamed day, but about the middle of September, 1930, suffered injuries to his person, and brings this action to recover damages therefor. He alleges in his complaint that, when he was injured, he was engaged in working on and with a device designed to level the highway preparatory to paving it; the issues involved in this appeal do not require that a more detailed description of this instrument, nor of the manner in which plaintiff was injured, nor the extent and nature of his injuries, be given. The answers of the defendants were general denial, admission of the formal allegations of the complaint, and that plaintiff was injured, but they allege that his injuries were due solely to his own negligence.

The case was heard by Judge Mann, with a jury, at the November 1931, term of the court of common pleas for Florence county, and culminated in a verdict for plaintiff. The defendants appeal from the judgment entered on this verdict.

There are six exceptions, but appellant's counsel treats the issues made by them under three heads, and we shall adopt that method.

Exceptions 1, 5, and 6 charge error to to the presiding judge, for that "he singled out Southern Paving Company as the defendant, apparently relieving the other two defendants of liability in the case."

It does appear that his honor spoke of the "defendant" and not of the "defendants," and more than once spoke of the paving company as if it were the sole defendant. But evidently it was harmless. It is apparent that the jury were not influenced by it, because they found a verdict against all of the defendants. If defendants' counsel was of opinion that this charge was calculated to prejudice one of his clients, it was his duty to have called this inadvertence to the attention of the court. This ground of appeals seems to be made solely on behalf of the paving company. We think that defendant was helped rather than hurt by the verdict, since there is nothing in the record to show that the other defendants are unable to respond by paying their share of the verdict.

Defendant's counsel did not object to the charge, nor call this cause of complaint to the attention of the court. On the contrary, when he was asked if there was "anything else," he answered, "Nothing for the defendant." Andrews v. Hurst, 163 S.C. 86, 161 S.E. 331.

"Where defendants failed to ask trial Judge to correct inadvertent statement of issues, they cannot complain on appeal." Piner v. Standard Oil Co., 163 S.C. 302, 161 S.E. 504; Builders' L. & S. Co. v. Cheek, 139 S.C. 299, 137 S.E. 734; Key v. Ry. Co., 165 S.C. 43, 162 S.E. 582.

Exceptions 3 and 4 charge error for that defendant's witness, Burras, was not allowed to answer the following question: "Did you ever see any one else injured by one of these subgraders?"

It does not need the citation of authority to establish that it is the rule of this court that the admission or rejection of evidence is left largely to the discretion of the court. We think that discretion was properly exercised in this instance. Other subgraders might be of different design than the one by which plaintiff was injured; some other grader might not be in the same state of repair or lack of repair as that one in question, and might be in a different use, and differently handled. Defendants' witness, James Jeter, when shown what purported to be photographs of the subgrader upon which plaintiff was riding when hurt, said that the picture was not correct; it did not show the grader then in use. Moreover, defendants' witness, Willie China, testified, without objection, that he had often ridden this particular subgrader; that he had never been hurt by it, and had never seen any one but Josh (the plaintiff) get hurt by it. This exception is without merit.

Exceptions 2 and 3 are based upon the ground that "it was brought out that an insurance company paid the hospital bills of the plaintiff after his accident."

It is the admitted rule of law in this jurisdiction that, upon the injection into a case of evidence to show that defendants are protected by indemnity insurance, the presiding judge is justified in granting to defendants a nonsuit, or in...